Last week, EPA issued a press release announcing a Federal Register Noticeseeking public comment on whether EPA should consider public health risks from vapor intrusion as a factor in eligibility for the Superfund cleanup program (my emphasis on “whether” is key – read on).

The EPA proposal was boldly titled: “Potential Addition of Vapor Intrusion Component to the Hazard Ranking Sytem” (emphasis on “potential“).

The proposal went on to ask the public, “if” EPA should, then “how” EPA should do so.

EPA, the supposed experts, provided no substantive details on how they thought vapor intrusion should be considered. EPA provided no timetable for final decision or any commitment to final rulemaking.

EPA merely solicited public comment on a series of questions EPA posed, as if vapor intrusion was some deep unknown or new discovery.

However, a closer look at the history and current bureaucratic process suggest a very different picture – specifically, that the proposal was snagged by Obama’s recent Executive Orderand U-Turn on regulatory policy.

Here’s some strong evidence as to why that is likely to be the case – as in most political and policy matters, understanding the timing and context are important:

Eligibility for Superfund cleanup is established by a risk screening method known as the EPA “Hazard Ranking System” (HRS) – the higher the score the worse the risks. Sites that score above 28.5 points qualify for Superfund.

Such a long overdue move by EPA to fix this HRS flaw would qualify hundreds of more contaminated sites for the Superfund “National Priorities List” (NPL), including at least 20 more sites in NJ where toxic chemical vapors are poisoning people in homes, schools, and other buildings (see GAO Report below).

So obviously, there has been – and currently is – fierce behind the scenes lobbying by pollutersand anti-governmental zealots to block EPA from doing this.

My sense is that EPA’s “Hazard Ranking System” proposal has, at best, been stalled or relegated to a regulatory purgatory. At worst, the proposal has already been derailed – killed behind the scenes – and amounts to a “dead proposal walking”.

In the latter (and more likely) case, EPA’s Fed. Register Notice would merely be going through the bureaucratic motions to save face and avoid having to ID the corpse and suffer the political embarrasment of having to admit caving to chemical industry and Republican pressure.

As we have written, the Vapor Intrusion (VI) phenomenon is nothing new. For example, EPA proposed VI guidancefor toxic site cleanups almost 10 years ago, back in 2002.

Since then, the number of toxic sites where EPA and State agencies are discovering chemical vapors seeping into buildings has expanded greatly, and so has the public outragethose belated discoveries create.

But many of those VI sites are not currently eligible for Superfund because the HRS scoring method fails to consider VI exposures and risks. Thus, those sites were ignored. As a result, many people are being exposed to avoidable VI risks without their knowledge and with no program to fund cleanups.

But despite knowledge by EPA of serious VI problems nationally, for years, EPA never moved to revise the HRS scoring method. Why do you think that is the case? Surely not because of lack of knowledge of these risks by EPA scientists and staff.

In fact, the current proposal to expand the Superfund HRS did not originate within EPA.

In fact, the impetus came not from EPA, but from a recommendation in a critical Government Accountability Office (GAO) May 2010 Report to Congress. NJ featured prominently in the GAO Report and NJ DEP officials were interviwed. DEP estimated the addition of from 15-25 new Superfund sites. GAO found (read the full GAO report here):

EPA regional officials estimated that from 101 to 125 sites – about 20 to 25 sites per year – will be added to the NPL over the next 5 years, which is higher than the average of about 16 sites per year listed for fiscal years 2005 to 2009. Most of the 10 states’ officials GAO interviewed also expect an increase in the number of sites listed from their states. However, neither EPA regional officials nor state officials were able to provide cost estimates for cleaning up many of the sites. In addition, the number of sites eligible for listing could increase if EPA decides to assess the relative risk of vapor intrusion – contaminated air that seeps into buildings from underground sources -a pathway of concern among EPA regional officials and state officials interviewed. Although sites with vapor intrusion can pose considerable human health risks, EPA’s “Hazard Ranking System” the mechanism used to identify sites that qualify for NPL listing does not recognize these risks; therefore, unless a site with vapor intrusion is listed on some other basis, EPA cannot clean up the site through its remedial program.

Based on that finding, GAO recommended:

To better identify potential NPL sites, GAO recommends that the EPA Administrator determine the extent to which EPA will consider vapor intrusion in listing NPL sites and its effect on the number of sites listed in the future.

That EPA implementation plan called the VI HRS revision as an action item. The December Plan also suggested that EPA would soon engage in rulemaking to incorporate vapor intrusion risk into the Hazard Ranking System (HRS).

One would assume that after years of experience with vapor intrusion at scores of sites, and following the public comment on the “action items” in the December implementation plan, EPA now would be in a position to propose a regulation – with specifics and meat on the bones – for public comment.

But EPA did not propose a regulation. They proposed a public notice asking “whether” EPA should propose a regulation.

Do a hollow Federal Register Notice that merely asks a set of questions and EPA plans to hold “listening sessions” constitute “action“? Not in my book.

There is a huge difference between an actual regulatory proposal and a notice seeking comment on whether EPA should regulate.

And consider the chronology closely – the timing between the May GAO Report, the December Draft Plan, the January Obama EO, and last week’s proposal – that’s more evidence suggests bureacratic backtracking by EPA.

But if that doesn’t convince you, read the timid, equivocal, contentless, and murky language of the proposal itself – read the full proposal here:

To comprehensively explore, and if determined appropriate, identify approaches for adding the threat posed by contaminant vapor intrusion into occupied structures to the HRS, EPA is beginning the process of soliciting stakeholder input. To determine whether to move forward with this addition, and if so, to determine a range of potential approaches, EPA is soliciting input on the topics described below.

The Settlement documentlacks any factual findings that describe the specific NR damages (how convenient for El Paso!). It merely references various very old remedial investigations. So until I can file an OPRA and review the documents, we’ll speculate about the nature and scope of pollution impacts (DEP leaks welcome!). I do have some old RCRA documents that show a regulated old landfarm and lime slurry operations. The site is bordered by the Delaware River at the top (west) and dense (1/4 acre lot) residential neighborhoods on the left (south) and right (north).

Let’s take a few closer looks – I’m no aerial map interpretation expert, but I’ve been to the site and will make notes.

Does that pond look like a healthy swimming or fishing hole? What’s that white crap? Looks like some kind of landfill on the right

That’s Red Bank Elementary School at the bottom left. How’d you like to send you kids to that school? Surprisingly, the thin strip of land between the refinery and the school (300 feet?) was posted as “endangered species habitat”. What kind of critters liketo live amidst toxic discharges? Maybe Coooper’s Hawk has adaptedto live there too, as well as in the suburbs! That looks like a pond – wonder if the fish are edible and how the other aquatic life are doing? Were these resources damaged by Sunoco and part of the NRD deal?

Here’s what the school looks like from the ground – look closely directly above the dome of the school and see the looming refinery towers. Toxic air emissions are not good for children and other living things!

On lower left, note the wetlands, and stream flowing from the pond to the river. Note the drainage ditch along the perimeter that also discharges to the river. There may be old unlined surface impoundments and lagoons stored toxic liquid hazardous waste on site. These and hundreds of spills and leaks over decades of operation, have led to massive soil and groundwater pollution. I assume that this groundwater pollution and surface runoff from the site are polluting the Delaware and poisoning ecosystems. I wonder what the Baseline Ecological Evaluation and NR damage assessment concluded about all that? How much are those resources worth?

Looks like there are some pretty valuable natural resources and sensitive receptors at the northern perimeter of the facility too. How’d you like to live in that neighborhood?

That’s a Farm down there, but it sure don’t look like Old MacDonald’s Farm. Does it look well maintained?

Gee, I wonder what kind of toxic crap is in this tank?

But don’t worry, be happy. The business friendly Christie DEP’s is looking out for you and Bob Martin is treating his “customers” (Sunoco) right! (look at that logo! Wow! The Official Fuel of NASCAR! But that tank in the lefthand background doesn’t look too good).

[Update: 1/26/11: surprisingly, veteran reporter Tom Johnson and the Sultan of the Soundbite Jeff Tittel both got smoked. See Tom’s NJ Spotlight story: Upper Raritan River Comes Back to Life

Here’s my comment on it:

The issue – and the story here – is not whether removing dams is good for fish and water quality.

If that were the case, then the Dupont NRD deal to plant trees and preserve land would have been given “rare praise” as well (instead of correctly condemned by Tittel and others as a “sweetheart deal”).

The real issues are: 1) whether the public was adequately compensated by an oil company for hundreds of toxic spills and leaks over decades at a billion dollar profit producing refinery – and 2) whether the natural resources damaged by those toxic pollution discharges along the Delaware River have been restored.

The answer to both questions is a resounding NO.

And just like Pompton Lakes Dupont deal, the people of West Deptford who suffered the harms got screwed entirely. -“` end update

There have been hundreds of spills and discharges at the Coastal Eagle refinery over many years, leading to significant soil and groundwater pollution, off site contamination, and adverse water resource, fisheries, wildlife and ecological impacts.

The deal is unusual and raises all sorts of red flags.

First is timing: the NRD Settlementwas published over 3 months ago in the NJ Register, on October 18, 2010.

The opportunity for public comment expired in November – there was little public awareness and no public comment on the deal.

So why is DEP issuing a press release now, after the public comment period is closed? Why didn’t DEP issue the release 3 months ago, when it mattered and the public could have used the information and meaningfully participated?

The timing also suggests DEP is responding to last week’s bad press on air quality rules for refineriesthat have come under attack. The coverage of that story created the impression that Governor Christie’s “regulatory relief” policies were seriously flawed.

We are writing concerning the need for standards to assess and restore adverse ecological impacts resulting from the discharge of hazardous substances to the environment at more than 20,000 sites in New Jersey. Individually and cumulatively, these sites represent a major threat to sensitive ecosystems and natural resources, as well as public health. It is imperative that those impacts and ecological impairments be assessed, restored, and the public fully compensated for lost uses of important fish, wildlife and other natural resources resulting from the discharge of hazardous chemicals to the environment.

The need for these standards has become even more pressing, in light of the recent law enacted to establish a privatized Licensed Site Professional (LSP) program. (P.L. 2009, c.60.) [find the full letter here]

The Sunoco deal is highly unusual and seriously departs from almost all prior settlements.

It lacks what the lawyers refer to as a “causal nexus” between the original pollution that caused the natural resource injury, and the restoration or compensation for that damage. [Clarification: there is $156,655 for a Delaware estuary study.]

That was a major controversial issue recently in the Dupont NRD deal, where Pompton Lakes residents got no benefits, despite suffering years of Dupont pollution.

New Jersey courtsand the business community have opposed such unprincipled and unbridled discretionto coerce NRD settlements, especially in the absence of promulgated DEP rules. Rules would provide up front guidelines, criteria, standards, and procedures for estimating the value of natural resources damaged and the parameters of settlement in the form of money compensation or restoration of equivalent natural resource functional values.

Scott Segal, an energy expert at Bracewell & Giuliani, a law and lobbying firm in Washington, said Ms. Brownerâ€™s leaving might be a sign that the administration would be more sensitive to the concerns of business.Â Â Â NY Times Director of Policy on Climate Will Leave, Her Goal Unmet

I don’t like to delve into the national scene, but sometimes the “I told you so” factorÂ is too sweet to resist.

From the outset of theÂ Obama Administration, we have been highly skeptical and publicly critical of theÂ environmental policy agenda.

As you know, PEER opposed your confirmation as EPA Administrator based upon your record as Commissioner of the New Jersey Department of Environmental Protection (DEP). One of our principalÂ concerns was that you repeatedly did not follow through on promises you made for action at DEP, leaving a trail of unfulfilled rhetorical commitments. We see a repetition of this same pattern durign your tenure at EPA.

So the fact that Obama’s “ambitious goals” Â have achieved – at best – what the New York Times todaycharacterizedÂ as “modest policy gains“Â – and that the Administration isÂ now backtracking on the environment, comes as no surpriseÂ to us, nor should it toÂ anyoneÂ else who is paying attention.

And the NY Times apparently is not aware that almost all of the promised regulations that support their claim ofÂ “modest policy gains”Â remainÂ just promises and have not been finalized and formally adopted.Â So there is still lots of backtracking to be done before 2012.

In a larger sense, today’s story about the departure of Carol Browner – White House “Energy Czar” – was no surprise. It was preceded by several obvious signals of retreat, not the least of which was the collapse of cap and trade (which we viewed as a good thing,Â but done for the wrong reasons).

Growing more republican every day, last Thursday, the New York Times reportedthat the Obama EPA was walking away from major regulations, just at the critical moment when EPA needed to ramp up regulations to address global warming in light of Republican intransigence and global warming denialÂ in Congress.

Some may think that Browner’s departure is no big deal because EPA has announced plans to regulate greenhouse gas emissions.Â

Well, we hate to burst anyone’s bubble (again), butÂ EPA’sÂ plans to regulate greenhouse gas emissions from refineries and power plants are hollow.We mean that literally.Â

Contrary to how it was presented in the press and praised by environmental groups, EPA’s GHG “tailoring rule” was expressly presented as regulatory relief,Â and explicitly designed to protect industry fromÂ harsh regulation. The EPA proposal states:Â Â

This rulemaking is necessary because without it PSD and title V requirements would apply, as of January 2, 2011, at the 100 or 250 tons per year (tpy) levels provided under the CAA, greatly increasing the number of required permits, imposing undue costs on small sources, overhelming the resources of permitting authorities, and severely impairing the functioning of the programs. EPA is relieving these resource burdens by phasing in the applicability of these programs to GHG sources, starting with the larget GHG emitters.

While regulating largest sources first may seem to make administrative sense, it makes no sense at all from a global warmign standpoint, where the concern isÂ the cumulative impactÂ of emissions from many sources,Â large and small. In fact, EPA’s approach makes no sense, and is a bigger strategic mistake than Congress’s grandfathering of all those dirty coalÂ power plants in the original 1970 Celan Air Act, a case ofÂ original sin we are still living with.Â

But things are actually worse,Â because EPAÂ proposed consideration of an “empty permit” (see page 31,517). An “empty permit” is just what its name implies – a joke, with no requirements at all, andÂ issued soley to legally protect polluters. EPA stated:Â

We intend to consider the issue of applicability of title V to GHG sources without applicable requireements (i.e. “empty permits”) in future steps of our “tailoring approach”. When we do so, we will further assess the potential for the approach of excluding empty permits from title V to relieve burden.Â

In April 2010, Administrator Jackson issued a new interpretative memorandum, the “Jackson Memo,” to clarify EPA’s approach to PSD and Title V applicability for pollutants, particularly for greenhouse gases, as a function of the adoption of vehicle emission standards.[12]The Jackson Memo continued the previous [Bush Administration] interpretation with one twistâ€”EPA decided that PSD and Title V permitting requirements “take effect” for newly regulated air pollutants only when actual compliance with emission control requirements for those pollutants is first required, rather than on the earlier dates of (i) signature of a rule establishing control requirements, (ii) publication of the rule in the Federal Register, or (iii) the formal effective date of the rule, typically 60 days after publication

EPA subsequently followed up on the “tailoring approach” with anÂ empty – literally, in this caseÂ content-less – press conference announcement of a settlement agreementto propose regulations in theÂ future that would apply to refineriesÂ and power plants.

It has not been reported that theÂ EPA Settlement is a weak deal. Fine print of the settlement agreement allows EPA to violate the deadlines for regulationsÂ with virtual impunity. The settlement provides little enforcement leverage for environmentalistsÂ – see remedies in paragraphÂ #7 .

The regulatory deadlines in the settlement give EPA another big out – thay areÂ conditioned upon the availability of approriations and thus may be killed by Republicans in Congress who have said they will not fundÂ global warming regulationsÂ (see paragraph #12).

Last Thursday,Â the Assembly Regulatory Oversight Committee Â released a resolution (ACR 132) that found a DEP clean air regulation“inconsistent with legislative intent”, the first step of repealing the rule.

Bill Wolfe, director of the New Jersey chapter of the Public Employees for Environmental Responsibility, defended the rule, saying the federal Clean Air Act contemplated a strong role for states to define control measures that were state-specific.

Bill Wolfe, an environmental advocate and former DEP employee, called the oil-tank provision “a pure public health-protection measure” and said New Jersey had to take extraordinary measures to start meeting air-quality standards.

He said that the industry previously would not have been bold enough to argue against it but that Gov. Christie had created a regulatory climate inviting such challenges.

One of Christie’s first acts in office last year was issuing an executive order saying that state agencies shall not adopt rules that exceed federal requirements, with limited exceptions.

He also commissioned a group to identify regulations that impede economic development for reasons that include exceeding federal standards “without well-documented cause,” placing the state at a competitive disadvantage in attracting jobs.

It is obvious that the oil industry isÂ cynically tryingÂ to capitalize on the current economic recession and Governor Christie’s regulatory relief policies to roll back a 2009Â DEP regulation on gasoline storage tanks.

The rule was proposed backÂ in 2008 and has been on the books for almostÂ 3 years.Â The legislature had ample opportunity to raise objections during the 2008 public comment period but failed to do so. Obviously, the only relevant thing that’s changed since then is Governor Christie’s “regulatory relief”Â policy agenda, which has invited oil industry lobbyist to mount aÂ legislative attack.

“The Department estimates that attaining the Federal 1997 8-hour NAAQS for ozone in New Jersey would eliminate about 40,000 asthma attacks each year and substantially reduce hospital admissions and emergency room visits among children and adults with asthma and other respiratory diseases (NJDEP 2006 ozone report). As such, implementing the proposed RACT rules would not only yield greater air quality benefit, but also would save lives and money and provide better living conditions for the people of New Jersey, especially the susceptible populations. Based on an article in the April 2007 of Harvard Center for Risk Analysisâ€™ newsletter â€œRisk in Perspective,â€ the Department estimates that ozone exposure results in increased deaths per year in New Jersey (â€œRelationship between Exposure and Mortality Risk,â€ Risk in Perspective, Vol. 15, Issue 2, p.1 (April 2007); available at http://www.hcra.havard.edu/perspective.html).Â

DEP bent over backwards and gave the oilÂ industry until 2020 – 10 years -Â to comply with the requirements to control volatile organic compound (VOC) emissions from their storage tanks, primarily located at refineries. DEPÂ estimates that the rule will reduce current VOC emissions from gasoline tanks by 130 tons per year. DEP estimates that these requirements will apply to about 70 tanks and cost $58 million.Â If that cost wereÂ fully passed through to consumers, the impactÂ would be less thanÂ one penny per gallon of gas at the pump.

Obviously, that $58 million wouldn’t put a dent in the industry’s rising multi-billion profits.

RefineriesÂ willÂ be required to reduce emissions even further to meet new EPA ozone standards (EPA proposed to reduceÂ the currentÂ 75 ppb ozone standard to a range of 60 – 70 ppb in theÂ January 19, 2010 Federal Register).

The oilÂ industryÂ is also seeking toÂ derail EPA’s recently annnounced plans to adoptÂ new greenhouse gas emissions controls at refineriesÂ by December 2012 (the so called national “new source performance standards”, NSPS for new or modified sources). States would then have until 2015 to develop state level NSPS for existing sources. NJ DEP will determine what greenhouse gas emission NSPS should be required at NJ oil refineries (and power plants).Â

For example, ACR 132 sponsor Burzichelli used that Big Lie in the Inquirer story, where he falsely claimed that the recent closure of the Sunoco refinery in West Deptford was related to environmental complianceÂ costs. But, in reality, that refinery closed due to slack or declining demand for gas as a result of the recession.

The pawn in these largerÂ debates isÂ a rollback ofÂ existing gasoline storageÂ tank vapor control air quality requirements.Â

If the business communityÂ can back DEP off these current requirements, they build power to deter future requirements.

Here’s how the oil industry is seeking to back DEP off.

Under aÂ 1993 amendment to the NJ Constitution, the legislatureÂ may vetoÂ state agency regulations if both Houses pass Resoltuions that find that aÂ regulation is “inconsistent with legislative intent”. The legislature was given this power in the wake of a highly controversial rule proposed by the Florio Administration – known as the “runny egg rule” – Â which triggered one of the firstÂ talk radio driven political backlashes.Â Â

This vetoÂ power has been used very rarely. Instead, legislative oversight hearings are typically is usedÂ more as a political threat in order toÂ extract concessions.

That’s exactly the Kabuki we saw yesterday. They are all playing a political game – here’s how it goes (listen here, the testimony starts about 20 minutes in) :

Assembly Regulatory Oversight Committee Chairman Burzichelli is the sponsor of the bill. He begins the hearing by saying that the testimonyÂ must be narrowly limited in focus to legislative intent, not to policy arguments. He then uses this to shut down environmentalistÂ testimony on health effects. ButÂ he sits back andÂ allowsÂ oil industry lobbyists to complain about the high costs of the regulation;Â

Although BurzichelliÂ knows the Resolution amountsÂ to a legal gun to DEP’s head, heÂ claims there is no adversarial role with DEP and emphasizes the fact that DEP Commissioner Martin has agreed to meet privately with him and theÂ regulated oil industries;

DEP appeared to testify to suppport the rule, thus creating the public appearance of protecting the environment (that providesÂ insulation from press criticism);Â

But, DEP bent over backwards in testimony to assure Burzichelli and industry lobbyists that the Department is “sensitive” to costs,Â understands theÂ concerns of the business community, and encouraging them to use an exemption provision in the rule (wink/nod); and

There is a huge looophole inÂ the DEP rule in question, under which DEP can let polluters off the hook based onÂ a costÂ analysis:. According to DEP:Â Â

Costs are also considered on a unit specific basis if costs are shown in an Alternative VOC control plan submitted pursuant to N.J.A.C. 7:27-16.17 to be economicallyinfeasible because of unusual site specific circumstances which result in extreme costs.

In this case, the DEP rule in questionrequires that gasoline storage tanks install vapor controls to reduce emissions of volatile organic compounds (VOCs), including hazardous air pollutants like benzene, aÂ known carcinogen.

VOCs are ozone precursors and contribute to unhealthy air quality commonly referred to as smog, or in regulatory jargon, exceedence of the NAAQS for ground level ozone.

NJ does not meet the current ozone standard and must sharply reduce current emissions.

In addressing the legislative intent question, a basic understanding of how theÂ federal Clean Air Act works is necessary toÂ understand what’s going on. According to EPA:Â

In setting primary ambient air quality standards, EPAâ€™s responsibility under the law is to establish standards that protect public health. The Clean Air Act (â€œActâ€) requires EPA, for each criteria pollutant, to set a standard that protects public health with â€œan adequate margin of safety.â€ As interpreted by the Agency and the courts, the Act requires EPA to base this decision on health considerations only; economic factors cannot be considered.

The prohibition against the consideration of cost in the setting of the primary air quality standards, however, does not mean that costs, benefits or other economic considerations are unimportant or should be ignored. The Agency believes that consideration of costs and benefits is an essential decision making tool for the efficient implementation of these standards.

Â The impacts of cost, benefits, and efficiency are considered by the States when they make decisions regarding what timelines, strategies, and policies make the most sense.